Hon’ble Mrs. Rumpa Mandal, Member.
Alleged Medical negligence has dragged the Complainant before the commission for redressal of her grievance. The brief fact of the complaint petition is that Complainant Smt. Photo Sarkar who is a residence of Bhanu Kumari, P.S- Baxirht, Dist. Cooch Behar, felt acquit pain in her abdomen and was taken to Doctor Saumyajit Sinha, MS (surgeon) Subham Hospital, Post & Dist- Cooch Behar for treatment in middle of December 2017, who after through clinical examination and advise some pathological test and an USG of whole abdomen. As per advice of the O.P. No.1 the Complainant got admitted at Subham Hospital & Diagnostic Centre Pvt. Ltd., Cooch Behar i.e. O.P. No.1 and O.P. No.1 doctor performed Laparoscopic Cholecystectomy operation on the same day with removal of the Gallbladder and discharged the Complainant on 20.12.2017. Complainant Paid Rs. 25000/- to the O.P’s which included the cost of surgery, pre operative care and post operative care as also expenditure on medicine. Even after such surgical procedure and taking all medicine prescribed by O.P. No.1, the Complainant did not recover rather her Condition deteriorated. So, she contacted O.P. No.1 and reported him all her discomfort. Complainant began to feel pain further like previous and without delay, she had to cause to bring her report the O.P. No.1 further (3rd times) and requested to look into the matter. O.P. No.1 further checked up and advised her for doing U.S.G (2nd-time). U.S.G had been done further on 02.01.2018 at Usha Diagnostic Centre Cooch Behar and it reveled as per report that # Hepatomegaly with grade-I fatty infiltration in lever. # peri-hepatic collection with internal echoes and Septations? Infective nature-?? Hemorrhagic nature.
Thereafter O.P. No.1 prescribes some medicines but she began to feel pain. Finding no other alternative Complainant had been brought before Dr. T. Bhowmik along U.S.G report and medicines. As per prescriptions Dr. T. Bhowmick advised the Complainant for doing U.S.G test and done also on 08.01.2018 at Star Imaging Centre, Cooch Behar, and after performing such test the said doctor gave impression of the test as follows -
: Post Cholecystectomy Status.
:Langere localized Collection in right hypochondrium
: and Perihepatic region (large bilioma)
: Mild Splenomegaly.
After going through the repost the said Doctor Bhowmik advised her to consult to M.S and afterward the Complainant further went to the chamber of O.P. No.1 on 19.01.2018 and O.P. No.1 checked her and prescribed medicine and also advised for doing U.S.G. Yet the pain was not removed, the Complainant had been brought at North Bengal Medical College, Siliguri on 12.02.2018. There after Complainant met with Dr. Gautam Das with all her previous reports and prescription of her treatment and heard all matters of the Complainant and going through the report they advise to take admission their immediately. On 12.02.2018 operation had been done as drain given in Bialoma, after diagnosing of “post Cholecystectomy, Bialoma” by the doctors of North Bengal medical college, then she had been discharged on 20.02.2018. Before leaving Siliguri, some test had been done at AMRI Centre, Siliguri on 22.02.2018 and reveled as “Drainage tube in Hepato-renal pouch is seen and gave impression of the test as fellow -
1. Tran section of CBD in mid 3rd.
2. Large Biloma on the right side of Abdomen”
There after discharging, the Complainant came back home along with medicines as per prescription. Administered medicine had been being continued accordingly, but after a few day the Complainant began to feel further pain. Without delay on 19.03.2018 Complainant had been brought further North Bengal Medical Collage, siliguri and met with said doctor on 28.05.2018 and even was admitted also and then said doctor diagnosed as per MRCP i.e. “post Cholecystectomy CBD stricture” on 13.06.2018 and she was discharged on same day. Complainant came back home with proscribe medicines and medicines are being Continued. The doctors of North Bengal Medical Collage, Siliguri, advise the Complainant that she had to continuation the use of medicines otherwise, problem would not be solved at all due to first operation at Cooch Behar Under O.P. No.1, because the procedure was not done properly. Doctor Saumyajit Sinha performed Cholecystectomy operation without pre operative and post operative care on 14-12-2017 and he also failed to use reasonable degree of skill care or perhaps a lack of infrastructure was remain there.
The Complainant realized that her physical condition day after day is deteriorated. It is pertinent to mention here that O.P-2 issued discharged Certificate at the time of discharging period that is on 20.12.2017 while the Complainant was moving towards North Bengal Medical Collage for proper checking up, discharged certificate and other important reports and paper unfortunately lost from her bag. There after husband of the Complainant Submitted a prayer as per guideline West Bengal Medical Council code of medical ethic to the O.P. No.2 on 11.07.2018 through registered with A/D for having necessary paper of the Complainant treatment which had been lost and the O.P. No.2 received the same letter on 12.07.2018. After receiving this letter O.P. No.2 did not provide the discharge certificate and other important report and the Complainant also informed the Baxirhat P.S regarding of the same. Till date no paper had not yet been received from the end of O.P. No.2. The O.P. No.1 i.e. Dr. Saumyajit Sinha was extremely negligent at every step i.e. operation and discharged and during the patient treatment and also failed to follow the standard of medical care. The Complainant had to incur huge amount of money and also sustain immense mental as well as Physical pain and agony. The cause of action arose on 14.12.2017 when O.P. No.1 performed operation of the Complainant and thereafter on several occasion and still continued. The Complainant prayed for a direction to the O.P’s to pay a sum of Rs. 5 lakh for medical negligence and deficiency in service, Rs. 4 lakh for mental pain, agony and harassment, and Rs. 15,000/- for cost of litigation.
The O.Ps contested the case by filing written version, evidence on affidavit and written arguments. The O.P. No.1 in his defence stated that the case was bad for non-joinder and mis-joinder of the parties because the doctor by whom the Complainant was treated were not made parties to this case. Ld. Advocate for the O.P. No.1 asserted that Dr. Saumyajit Sinha, the O.P. No.1 was a surgeon who was in the medical field for more than 30 years with unblemished carrier and whatever allegation with respect to treatment and deficiency in service against him were false and were denied by him.
So far as the case was concerned Dr. Saumyajit Sinha asserted that the said patient, Smt. Photo Sarkar came to him on 14.12.2017. On 15.12.2017 this O.P. No.1 performed laparoscopic Cholecystectomy operation of the patient which was in accordance with the medical service for which the patient in question was in O.P. No.2 Subham Hospital and Diagnostic Centre Pvt. Ltd., on 14.12.2017 to 20.12.2017. The discharge of the patient was in stable condition with advice to take some medicine. The Complainant paid a package fee of Rs. 25,000/- to the O.P. No.1 and OP has charged just Rs.9,000/- against his professional fees for conducting such operation. All possible medical care had been taken in her said surgical procedure. The O.P. No.1 doctor treated the patient was given as per medical norms. The O.P. No.1 asserted that the Complainant came to him on 19.01.2018 she visited to the O.P. No.1 with some sorts of problem in her abdomen. Then O.P. No.1 advised her some medication and also advised to do USG of whole abdomen. But since then she did not turn up. The causes of post cholecystectomy CBD stricture during gall bladder surgery occur because the area around the gall bladder and bile ducts is masked in some way so that the doctor cannot see it clearly. During operation no bile leakage was noted in the case of common bile duct injury (CBD). Even no bile duct leakage was found through the abdominal drain in post-operative period during stay in O.P. No.2 Hospital.
The O.P. No.1 asserted that the Complainant was diagnosed to be suffering just on 19.01.2018 at the time of her visit and forthwith on the self same day she was advised for undergoing certain relevant investigation as was necessary for her for proper diagnosis. The O.P. No.1 was totally denied that the doctors of North Bengal Medical College, Siliguri advised the Complainant that she had to continuation the use of medicines otherwise, problem would not be solved at all due to 1st operation at Cooch Behar under O.P. No.1 because procedure was not done properly. He also asserted that all measures were taken and all avenues were explored in performing the laparoscopic cholecystectomy. He left no stone unturned for the patient of his well being within the limit of medical sciences available in hand and she was under constant surveillance and proper case was taken during her operation, stay in the O.P. No.2 hospital and during pre and post operative stage. All sorts of support which was required, keeping in mind the condition of the patient was given to the patient. He also asserted that he had treated the patient with utmost care and as per his knowledge of medical science. There was no negligence nor deficiency in service nor there was any failure to use reasonable degree of skill, care, knowledge and prudent as alleged. Thus, the Complainant did not suffer due to his fault. Therefore, the Complainant is not entitled to get any compensation whatsoever and the Complaint petition is liable to be dismissed with cost.
The O.P. No.2 in his defence stated that this Complaint Petition is not maintainable because of non-joinder and mis-joinder of parties. That the doctors and the institution in which the Complainant was treated should have been made parties to this case. He also asserted that they were reputed Hospital having better equipments and infrastructure within the district and the same was provided to the Complainant at the time of treatment. They followed the advice of the attending doctor with great care and served the medicine prescribed by the O.P.No.1 doctor. There was no negligence whatsoever on the part of the O.P. No.2 in the treatment of the Complainant. The entire allegation as brought against the O.P. No.2 are altogether false and baseless. The O.P. No.2 has not practiced any unfair trade with the Complainant and there was no deficiency in service as alleged by the Complainant. There is no cause of action to file this case against O.P. No.2. Therefore, the Complainant is not entitled to get any relief whatsoever and the complaint petition is liable to dismissed with cost.
Perused the written version, evidence on affidavit and all documents in the case record. Heard, the arguments of both parting at length. Considering all these, the Commission wants to analysis the following points to reach at a conclusion about the instant case.
Points for Determination
(1) Whether there was any medical negligence on the part of the O.P’s?
(2) Is the Complainant entitled to get any relief as prayed for in her complaint
petition?
Decision with reasons
Point Nos.1 & 2.
Both points are taken up together for discussion as they are interlinked with each other and for brevity also. The Complainant Smt. Photo Sarkar was seen by Dr. Saumyajit Sinha (O.P. No.1) on 14.12.2017 on perusal of the U.S.G report. The O.P. No.1 advised the Complainant to undergo a surgical procedure for which the Complainant got admitted in O.P. No.2 Multi Specialist Hospital on the self same date. On 15.12.2017 O.P. No.1 performed Cholecystectomy operation of the patient and discharged the patient on 20.12.2017. On 19.01.2018 the Complainant paid visit to the O.P. No.1 doctor when her prescribed some medicine for relief of her abdominal pain.
Annexure- A1 is the U.S.G of whole abdomen of the Complainant. But since then she did not turn up. It transpires that the patient was under treatment of Dr. T. Bhowmick, MBBS and under doctors of North Bengal Medical Collage & Hospital and at AMRI, Siliguri wherein her case was diagnosed as post Cholecystectomy CBD stricture. O.P-1 denied post Cholecystectomy CBD stricture.
In fact the causes of post Cholecystectomy CBD stricture during Gallbladder surgery occur because the area around the Gallbladder and bile ducts is masked in some way so that the doctor cannot see it clearly. This can happen if the area’s stricture (anatomy) is different than normal, or if there is a lot of bleeding swelling or scarring in the area. The O.P. No.1 asserted that during operation no bile leakage was noted as it happens in the case of common bile duct injury (CBD) as a result suspicion of CBD injury could not be made at the time. Even no bile duct leakage was found through abdominal drain in post-operative period during stay in O.P. No.2 Hospital. Whether CBD injury is a known complication of laparoscopic cholecystectomy procedure or it was caused due to lack of care/ negligence on the part of the operating surgeon and his assisting doctors is the marital question, answer to which would decide the fact of the present complaint.
The Complainant was diagnosed to be suffering just on 19.01.2018 at the time of her visit and forthwith on the self same day she was advised for undergoing certain relevant investigations as was necessary for her for proper diagnosis.
In the above discussed case the main plea of the Complainant was that the doctors of North Bengal Medical College, Siliguri advised the Complainant that she had to continuation the use of medicines otherwise problem would not be solved at all due to first operation at Cooch Behar under O.P. No.1, because the procedure was not done properly (i.e. Dr. Saumyajit Sinha performed cholecystictomy operation without pre-operative and post-operative care on 14.12.2017 and he also failed to use the reasonable degree of skill care) or perhaps a lack of infrastructure was remained there. But O.P. No.1 asserted that he treated the patient with utmost care and as per medical point of view. So, the question of negligence does not arise in any way. Therefore, it must be presumed that the incident of CBD injury is a well known risk when a patient undergoes a laparoscopic cholecystectomy procedure. In other words, the same cannot be correlated as the act of negligence or carelessness on the part of the operating surgeon. Once it is shown that the medical protocol was followed no case of negligence in made out against the O.Ps. With respect to the subsequent and persisting problems, which the Complainant claims to have suffered even after her discharge from O.P. No.2 hospital that such post-operative problems were normal and had subsided after the Complainant took treatment at certain other medical centres. In any case, the Complainant was discharged from the hospital in a satisfactory condition and she did not revert back to the said hospital for consultation about subsequent problems, which she had to face, may be for the reason that the Complainant had lost faith in treatment given by the O.Ps. On that count also it is not possible to fix any liability on the O.Ps. Thus, on a consideration of the entirety of facts and circumstances of the present case the evidence and material brought on record, and view of the well known author in different medical text book, the irresistible conclusion is that the Complainant have failed to establish their case about medical negligence and/ or deficiency in service against the O.Ps in treatment of the Complainant. The Complainant being devoid of any merits is accordingly dismissed.
From the above stated case it is admitted position that the CBD injury is a common phenomenon in laparoscopic cholecystectomy because of the fact that the surgeon is not able to directly see the area of operation but instead is able to view things on a screen after the camera is inserted internally through small incision in the abdomen and procedure is performed by inserting small surgical equipment through another incision in the abdomen. In this case, the Complainant could not prove any evidence that the O.P. No.1 was negligent in performing the said procedure. Moreover, the phenomenon of CBD injury was admitted by the O.P. No.1 then it was his responsibility to repair the said injury free of cost for which the O.P. No.1 claimed that no further package money was demanded by him. The Complainant did not refute the claim of the O.P. No.1 by adducing any evidence. Therefore, considering all aspects and placing reliance on the observation of the Hon’ble National Commission it is established that the Complainant cannot prove any medical negligence or deficiency in service on the part of the O.P. No.1.
It is also admitted by the O.P. No.2 that they provided their better equipment and infrastructure at the time of treatment to the Complainant. They also followed the evidence of the attending O.P. No.1 doctor and supplied the medicine prescribed by him to the Complainant with great care. The diagnosis of the patient and test and medicine prescribed by the attending O.P. No.1 doctor cannot be controlled by the O.P. No.2 hospital. There was no specific allegation against the O.P. No.2 and there was no evidence filed by the Complainant to prove deficiency in service against the O.P. No.2. Therefore, the allegation of deficiency in service against the O.P. No.2 is not established.
As the medical negligence of deficiency in service is not proved against the both O.Ps so the Complainant is not entitled to get any relief whatsoever.
Accordingly, both points are answered in negative and decided against the Complainant.
In the result, the complaint case fails on contest.
Hence, it is
Ordered
That the complaint case No. CC/83/2019 be and the same is dismissed on contest.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
